Carter v. State , 14 Ga. App. 406 ( 1914 )

Wade, J.

(After stating the foregoing facts.) Section 998 of the Penal Code provides: “The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled, or ought not to be put upon him; the suffieieney of which challenge the court shall determine at once. If sustained, a new trial shall be ordered; if not sustained, the selection of jurors shall proceed.” From aught the record definitely discloses, the defendant may have challenged the array when the panel was put upon him and subsequently to the overruling of his special plea and his demand for a discharge, and the trial judge may have sustained the challenge and ordered a new panel; or the trial may have proceeded and a conviction may have resulted; a motion for a new trial may have been granted or refused, or may be now pending undisposed of. It is true that it appears, from the motion to dismiss the bill of exceptions, that the defendant was convicted and filed a motion for a new trial, which was to be heard on February 12, 1914, unless further continued, but it does not appear that the motion for a new trial has ever been disposed of.

Since it appears from the record that it still was possible for the trial judge to summon a legal jury, if the jury impaneled was not such a jury, before the close of the adjourned term of the court during which the defendant, unless tried, was entitled to a discharge on account of the filing of his demand for trial (provided the proper challenge to the array was entered by the defendant and the challenge was sustained by the judge), it appears that the judgment complained of in the bill of exceptions would not, under any view of the case, finally dispose of the case, and that the bill of exceptions was brought prematurely. The motion to dismiss the writ of error is therefore sustained. Duke v. Story, 113 Ga. 112 (38 S. E. 337). The plaintiff in error is granted leave, should he desire to do so, to file the bill of exceptions, as exceptions pendente lite in the cause.

Writ of error dismissed, with direction.

Roan, J., absent.